People v. Wachtel
| Citation | 507 N.Y.S.2d 757,124 A.D.2d 613 |
| Parties | The PEOPLE, etc., Respondent, v. Jeri WACHTEL, Appellant. |
| Decision Date | 03 November 1986 |
| Court | New York Supreme Court Appellate Division |
Mahler & Harris, Kew Gardens (Daniel J. Cotter, of counsel), for appellant.
Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese, Bruce E. Whitney, George Freed and Susan Katz Richman, of counsel), for respondent.
Before BROWN, J.P., and WEINSTEIN, LAWRENCE and KOOPER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Nassau County (Goodman, J.), rendered June 11, 1984, convicting her of attempted murder in the second degree, kidnapping in the second degree, robbery in the first degree (three counts), criminal possession of a weapon in the second degree and conspiracy in the second degree, upon a jury verdict, and imposing sentences. The appeal brings up for review the denial of those branches of the defendant's omnibus motion which were to suppress physical evidence and oral and written statements.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by (1) reversing the conviction of kidnapping in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment, and (2) by deleting the provisions thereof which provided that certain sentences should run consecutively to each other and substituting therefor provisions providing that the sentences imposed shall all run concurrently to each other. As so modified, the judgment is affirmed.
The People concede that the defendant's conviction for kidnapping in the second degree must be reversed, the sentence imposed thereon vacated, and that count dismissed, as that crime merged into the crime of attempted murder in the second degree (see, People v. Geaslen, 54 N.Y.2d 510, 446 N.Y.S.2d 227, 430 N.E.2d 1280; People v. Cassidy, 40 N.Y.2d 763, 390 N.Y.S.2d 45, 358 N.E.2d 870). The People also concede that the sentence imposed upon the conviction for criminal possession of a weapon in the second degree may not run consecutively to the other sentences imposed (see Penal Law § 70.25[2]; People v. Terry, 104 A.D.2d 572, 479 N.Y.S.2d 278). The remaining sentences should be made to run concurrently in the interest of justice.
The defendant was convicted of the foregoing crimes for her role in the abduction and shooting of her husband. Early in the morning of June 25, 1983, two armed men entered the home of the defendant and her then husband, William Wachtel, demanding money and jewelry. Following a struggle during which a gun was discharged, Wachtel was forcibly taken from the house, handcuffed, blindfolded and locked in an automobile trunk. After driving for a while, the men stopped, opened the trunk and shot Wachtel twice in the face. The men then drove another short distance before again stopping and shooting him four additional times. Soon thereafter, Wachtel's assailants, apparently believing him dead, abandoned the car and left the scene in another automobile. Wachtel managed to attract help by kicking and screaming from within the trunk. When found and released, Wachtel asked that the police be sent to his home, because he feared for the defendant's safety.
The police first went to the home at approximately 3:30 A.M., and in response to questions about her welfare and Wachtel's whereabouts, the...
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